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Borat Fundamentals

Borat Fundamentals

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Published by Panda Kroll

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Published by: Panda Kroll on Apr 10, 2009
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06/17/2009

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Borat Fundamentals – by Panda Kroll, Esq.
1.Who is “Borat”?
“Borat” is the namesake character of the mockumentary, “Borat: Cultural Learningsof America for Make Benefit Glorious Nation of Kazakhstan.” He is portrayed by BritishTV comedian Sacha Baron Cohen, who invented the character for TV. Cohen’s work inthe film was recognized with a Golden Globe (“Best Actor in a Comedy or Drama”).
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2.What is the film about and how did it fare?
Borat portrays a fictional Kazakh reporter making a documentary about Americanculture for the fictional Kazakhstan Ministry of Information. Believing the fiction,ordinary Americans are duped into portraying themselves on the film in an unflatteringlight, candid-camera style. The ad-lib film, which was originally expected to flop, earned$260M at the box office and a 2007 Oscar nomination for “best adapted screenplay.”3.
Who is suing Cohen/Borat and 20
th
C. Fox and why?
Ten plaintiffs who appeared in Borat filed suit, but none survived early dismissal (seechart, infra). Claims generally allege invasion of privacy, unauthorized use of likeness,fraudulent inducement, rescission, emotional distress and pray for injunctive relief (tostop DVD sales).
4.Why did all ten lawsuits fail?
Cohen and his producers were successful in asserting two defenses: First, the“consent agreement” signed by many of the plaintiffs included a merger clause that, pursuant to a New York Federal District Court judge, precluded claims for fraud.
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Second, even where no consent was given, both New York and California courts agreedthat the film’s themes were of “public interest,” trumping the plaintiffs’ privacy interests.In L.A. Superior Court, plaintiffs paid nearly $100,000 in Anti-SLAPP attorney fees, because they could not support their damages claim.
5.Who are Borats targets?
Possibly you and I! Cohen has written and will likely star as an ambulance-chasing personal injury lawyer in a new film, “Accidentes.” The protagonist will be a lawyer of Latin descent who transforms from contingency attorney to a hero of the working class,while becoming the enemy of L.A.’s power elite.
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In addition to prior TV portrayals of his “Borat” character, Cohen is also known for his wannabe-gangsta-rapper, “Ali G” and “Bruno” (a flamboyantly gay Austrian fashion reporter who will be the centralcharacter in a Borat “sequel” slated for July 2009). Cohen has also been signed to play Sherlock Holmesopposite Will Farrell, and Abbie Hoffman in a film on the Chicago Seven.
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The dismissal of one such case has been appealed to the Second Circuit Court of Appeals.
 
 
6.What is a SLAPP?
California and 25 other states have enacted plaintiff-punishing laws to protectdefendants against so-called Strategic Lawsuits Against Public Participation (SLAPPs), inthe form of anti-SLAPP statutes, or “special motions to strike.” Originally developed to protect the public from commercial developers and others who sought to squelch publicdebate, California’s anti-SLAPP statute has evolved to encompass speech in the abstract,and to permit challenges by business entities as well as individuals and organizations.The statute is to be “construed broadly” to include any civil lawsuit in which the allegedinjury “arises from” a valid free speech activity, or any written or oral statement made ina public forum or even between private individuals “in connection with an issue of publicinterest.” Code Civ. Proc. § 425.16. In many SLAPP states, such as New York, motionsare limited to a much more narrow class of “public” issues (i.e., the granting or denial of a public permit or application).In California, SLAPP claims have included not only defamation, trade libel, slander of title, invasion of privacy, malicious prosecution, and abuse of process, but also lessobvious claims such as consumer remedies, unfair practices, interference with businessrelationships, trespass, nuisance, and harassment. Recently, online publishers (bloggers,anonymous Internet chat room participants, and ISPs), have been successful in exercisinganti-SLAPP rights for the following:
comments posted about a company’s finances
comments posted about public persons and their voluntary companions
comments posted about topics of widespread public interest or debate
7.What is an anti-SLAPP motion?
An anti-SLAPP is a “special” motion to strike that furthers the legislative goal of  protecting the public from expensive “speech-chilling” litigation. A successful motion permits a defendant to seek dismissal at an early stage (60 days after service of thecomplaint or cross-complaint). The motion functions like a demurrer on steroids, because it:
 precludes amendment of complaint;
stays all discovery, yet shifts burden to P to prove likelihood of success,once D merely makes prima facie case that protected speech is at issue;
requires P to produce admissible evidence at the pleading stage;
 permits direct appeal of a denial; and
mandates an award of reasonable attorney fees in favor of successful P,even if D voluntary dismisses challenged claims.A lawyer served with an anti-SLAPP motion shortly after filing a complaint may findhim or herself explaining to clients that they risk a mandatory fee award. Plaintiffsadditionally face exposure to compensatory and punitive damages, should the defendant be able to prove that the suit was brought “in order to harass or silence.”
 
8.Why did New York and California trial judges find “protected speech” in Borat?
 New York Case No. 1: Man Running Away From Borat on Manhattan Street(Held, “bizarre and offensive” is a matter of public interest)The unauthorized commercial use of a person’s name, portrait, picture or voice is precluded by New York’s Civil Rights Law § 51. In Lemerond v. Twentieth Century FoxFilm Corp., 2008 U.S. Dist. LEXIS 26947 (S.D.N.Y. March 31, 2008), the plaintiff making a claim under the statute asks in a brief opposing defendants’ Rule 12(b)(6)motion, “are there really no limits on Borat’s ability to pluck otherwise anonymouscitizens out of a crowd and subject them to public ridicule for profit in the name of the‘public interest’?” The challenged scene “shows Borat, with a heavily accented voice,greeting Plaintiff on the corner of 5th Avenue and 57th Street in Manhattan.” “Approaching Plaintiff, Borat extends his hand and says: ‘Hello, nice tomeet you. I’m new in town. My name a Borat.’ Before Borat can finishhis greeting, however, and without further provocation, Plaintiff begins torun away in apparent terror, screaming ‘Get away!’ and ‘What are youdoing?’ The 13-second clip concludes as Borat responds, ‘What is the problem?’ Defendants never obtained consent to use Plaintiff’s image,which appears twice in the movie and once in its trailer advertisement. Inthe trailer, Plaintiff’s face is scrambled, rendering his likeness ‘blurry’ andindiscernable; his face is not scrambled in the film itself.”The above-described screen is the culmination of a series of clips in which NewYorkers express understandable revulsion and surprise at Borat’s antics, which includewashing his over-sized underpants in Central Park, pleasuring himself in front of windowmannequins, and apparently evacuating his bowels outside of the Trump building. In her opinion granting dismissal, federal district court Judge Loretta Preska ruled that the filmwas not a “commercial” use within the statute because of its “newsworthiness,” broadlydefined as including “social trends or any subject of public interest.” She also noted,“what is one man’s amusement, teaches another’s doctrine.”Acknowledging that the movie’s brand of humor “appeals to the most childish andvulgar in its viewers,” Judge Preska elaborated upon the “teachings” of Borat:At its core, however, Borat attempts an ironic commentary of ‘modern’American culture, contrasting the backwardness of its protagonist with thesocial ills [that] afflict supposedly sophisticated society. The moviechallenges its viewers to confront, not only the bizarre and offensive Boratcharacter himself, but the equally bizarre and offensive reactions he elicitsfrom ‘average’ Americans. Indeed, its message lies in that juxtapositionand the implicit accusation that ‘the time will come when it will disgustyou to look in a mirror.’ Such clearly falls within the wide scope of what

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